Delivered
by the Honourable Acting Judge, Mr. Justice M.L. Lehola, on the 17th
day of August, 1986.

The
Appellants appeared before the Resident Magistrate Mafeteng on 7th
February, 1986, charged with the crime of robbery.

The
charge sheet set out that "the accused are charged with the
offence of robbery in that upon or about 29th October, 1985,
and at
or near Mafeteng Urban Area, in the District of Mafeteng, the said
accused did one or other or both unlawfully assault Ts'eliso
Tsehlo,
George Seabata Ramarou and Thabo Sesinyi and by intentionally using
force and violence to induce submission by the said
Ts'eliso Tsehlo,
Seabata George Ramarou and Thabo Sesinyi, did take and steal from
their person or their presece out of their immediate
care and
protection certain property, to wit M23,319-59, the property of
Maluti Retailers Mafeteng Urban Area in their lawful possession
and
did rob them

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of the
same.

The
accused pleaded not guilty. The Crown called evidence at the end of
which the accused were convicted as charged and sentenced
to four
years' imprisonment each.

In a
notice of appeal drawn by Mr. G.G.Nthethe accused appealed against
both conviction and sentence (with right reserved to file
further
grounds of appeal when the records is available) on the following
grounds:-

The
learned Magistrate erred in convicting the Appellants despite the
fact that the Crown evidence

did not beyond reasonable doubt prove

them guilty.

The
learned Magistrate overlooked the fact that the identification
parade held was improperly held.

The
learned Magistrate erred in rejecting Appellants' story yet it was
probable.

Suffice
it at this stage that no supplementary grounds had been filed when
this matter was placed

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before me
on 14th July, 1986. for treatment in terms of Sect.327 or 328 of the
Criminal Procedure and Evidence Act 1981.

Having
read the record I, acting in terms of 327 supra dismissed the appeals
summarily and ordered that the Registrar should forward
to the
Subordinate Court Mafeteng the relevant returns to ensure that
Appellants are informed of the results of their appeals.

I was
somewhat taken aback when a few days afterwards the file was brought
before me again with the request that Appellants' Counsel
had come to
argue the appeal for Appellants on 21st July, 1986. As the matter had
been properly dealt with in terms of the law
and finalised before
that day, it appeared the matter could not be carried any further.
There was no notice of hearing for that
day in the file when I dealt
with the matter on 15-7-86. In any case that would have been
pre-mature as the right procedure is
for the notice of hearing to be
issued in terms of Sect. 328 supra only after the determination by
the Judge to that effect. Furthermore
as indicated earlier when heads
of argument for Appellants were filed on 21st July, 1986, in
preparation or anticipation for the
hearing that would follow the
matter had long been decided.

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As a
result of a mistake on the part of the Registrar's office, to wit,
setting the matter down on a future date before letting
the Judge
make a determination on the issue this file once more found its way
on the Honourable the Acting Chief Justice's desk
for hearing. He
rejected it on the grounds that the matter had been finalised in
terms of Sect. 327 supra.

It is on
account of the irregularities pointed out above that 1 decided to
prepare a written judgment in this appeal. General remarks
expressed
in PHOHLO vs REX CRI/A/22/86 (unreported) at Page 4 et sequel avail.
MABOTE vs. REX CRI/A/55/83 unreported.

The
evidence led before the Court a quo revealed that P.W.1 Mats'eliso
Chitja was an employee at Jandrell's. She works as an accountant
there. On the day in question she arranged cash and books to be
conveyed to the bank. Her duty entails making entries in a bank
book
in triplicate. The money is carried along with two copies to the bank
while the first copy remains in the bank book in her
custody.

On the
day in question she had counted the money reflected in the cheques
ready for depositing. It amounted to M3509-57 and the
bank notes in

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cash
amounted to M19,810.00 making a total of M24.319-57 in all. She
produced before Court photocopies of amounts of money she had
hoped
to deposit in the bank that day. She detailed Thabo Sesinyi, a fellow
employee, to deposit the money in the bank in the company
of the
driver Ts'eliso Tsehio and Seabata Ramarou, the security guard.

P.W.1
also produced as exhibit the book from which photocopies were made.

An hour
after she had handed the money to P.W.2 Thabo Sesinyi the latter
entered the Jandrell's shop and gave P.W.I a report whereupon
P.W.I
went to the Charge Office where she found Sesinyi wounded. She
reported to the police that she had not authorised anybody
to divert
the money from the bank or take it by force or any means from P.W.2.
P.W.1 was not cross-examined.

P.W.2
Thabo Sesinyi testified that on the 29-10-84 Ramarou, Tsehlo the
driver and he left the shopping area at Jandrell's and headed
for the
bank in a light delivery van. The three of them were sitting side by
side in the van. He was flanked by the driver of the
van and by
Ramarou. He had been handed paper bags containing what he believed to
be money of unknown amount to him. He was detailed
to take this money
to the bank.

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The
driver was the last to enter the van. P.W.2 did not notice the
presence of the accused as there was much traffic.

Their
vehicle travelled about 100 yds along the tar road after entering it.
Suddenly, when it was about 8 paces from the Standard
Bank where
money was to be carried, it swerved to the right taking the road
leading to the bus stop. In this unexpected turn of
events when P.W.1
turned his head and looked through the back window of the van he saw
that two people were occupying the buck
of their van. There and then
he saw a person "pointing a gun next to the driver." Before
the vehicle branched off P.W.2
heard the driver say "Is it not
better to take them to Thabana-Morena?" At the time P.W.2 did
not see the face of the
man holding the gun. The vehicle was then
moving fast. The man holding the gun was shouting and saying "Race
this car you
satan". He was saying this repeatedly with a raised
voice. The vehicle went past the main Mafeteng bus stop and moved
fast
in the direction of the road leading to Thabana Morena. P.W.1
questioned the driver about where he was driving the vehicle to. The
driver said "Don't you see that these people are carrying guns?"
When P.W.2 turned his head to the left he heard another
man at the
back saying "Bring this money you satans." This was Accused
1.

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P.W.2
slammed with his foot on the brakes of the vehicle and it stopped.
That time they had moved about half a mile from Jandrell's
shop which
is not far from the Bank.

Giving
P.W.2 the rough side of his tongue the driver asked if P.W.2 didn't
see that he would overturn the vehicle. Thus roundly
reprimanded
P.W.2 removed his foot from the brake paddle and the vehicle once
more moved at high speed. When the first demand for
money was made by
the man in the buck of the van P.W.2 handed the first bag to Ramarou
who in turn gave it to that man through
the left handside of the
vehicle. Amidst all the swearing by the accused and the noise caused
by them rapping on the roof of the
vehicle, P.W.2 handed over to
Ramarou the second money bag when the accused protested that "this
is not all the money, bring
the money you satans."

Ramarou
escaped through the door while the vehicle was in full motion. The
vehicle stopped. He collected stones and started throwing
them at the
accused occupying the buck of the van. P.W.2 alighted when the
vehicle stopped. He picked up a stone and simultaneously
heard a gun
report. Accused 2 was carrying a gun. When P.W.2 was about 8 paces
from him accused 2 fired the gun at him and shot
him under the right
arm-pit. This time P.W.2 and Accused 2 were in a donga. Accused 1 and
the driver had disappeared into the donga
while Ramarou was trying to
cross Accused 2's path. Ramarou was being urged to catch Accused 2 by
P.W.2 who was telling Ramarou
that Accused 2 had fired his last

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shot. As
P.W.2 was wounded Ramarou decided to hurry him to the hospital.
Ramarou thus drove the vehicle first to the Charge Office
and next to
the Hospital where P.W.2 was treated.

In trying
to cross examine this witness the two accused seemed intent merely in
making game of him. For instance Accused 1 to P.W.2
said "Did
you want to give me money ....? No.

What
forced you to give me the money ...? I was afraid because you were
swearing at me.

Ware you
satisfied with the insults I directed at you .......? No.

Why did
you not close the windows ...? I was afraid.

Were you
instructed to give the money to a person who came and insulted you
........? No.

What
insults did I utter .....? Devil.

Is that
an insult .....? It is because I am not one."

Accused 2
merely contented himself with saying P.W.2 was lying.

P.W.3
Seabata Ramarou gave evidence corroborating that of P.W.2 in all
material respects. He is a security guard and was a policeman
of long
standing well trained in the use of fire-arms. That he sustained no
injury on bailing out of a vehicle

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moving at
high speed is comment enough on the benefit he derived from the
training he underwent as a policeman. He had heard a gun
report from
Accused 2 but nonetheless came face to face with him. That Accused 2
was pointing a gun at him did not make him flinch.
In this sensitive
situation, he scared Accused 2 out of countenance with the result
that the latter even asked him "Sir, would
you rather I killed
you for this white man's money..?" turned tail and fled. It
should be remembered P.W.3 was not armed with
any fire weapon. Thus
his valour, gallantry and disregard of personal safety in adversity
are commendable.

At a
subsequent parade held on 26-11-84 P.W.3 was able to pick out both
accused without any difficulty. He was able to do so first
because he
had had enough opprotunity to take a good look at them during their
encounter with him. In the words quoted from the
learned Magistrate's
judgment "P.W.3 Seabata Ramarou is positive that he identified
them ...... He says he took a long time
struggling with them and that
they will remain in his memory. The evidence of this witness was not
shaken." With this finding
I agree entirely.

After the
fashion of questions put to P.W.2 Accused 1 once again put questions
to P.W.3 the purpose of which if anything was to
redicule this

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witness.
For instance,

"Do you say Thabo P.W.2 said you should give me the money and
you did so ...? Yes.

Was it lawful for Thabo to tell you to give the money ....?That was
an easy way of saving our lives.

Why did you agree with Thabo to give us money .....? Because our
lives were in

danger.

Do you say I asked for money holding the gun ____? No.

Do you say I ran away with the money ...? Yes."

Accused
2's cross examination did nothing to shake P.W.3:

"I say you are telling a lie when you say I was carrying a gun
that day ____? I

am sure you were carrying a gun that day.

Why did you fail to identify me at the' parade ____? I identified
you, I know

well.

Are you sure 1 fired the gun that day....?

Yes."

P.W.4
Trooper Lephoto had seen the two accused jump into the vehicle before
it gained day speed that/and because this appeared an
innocuous
matter he did not attribute any sinister motive

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to it. He
later identified the two accused by their facial appearances and the
clothes they were wearing thus corroborating P.W.3
and to some extent
P.W.2.

Accused 1
gave evidence on oath which did not allude to the events of that day
from the time he and Accused 2 jumped into the vehicle
to the time he
was seen running away with the money. He merely confined himself to
what happened at the Charge Office after his
arrest. Whatever prima
facie evidence was made against him became conclusive evidence
against him on account of his failure to
rebut any. This of course
should not be understood to say there is any onus on him to establish
his innocence. The onus rests on
the Crown throughout.

Accused 2
having opted to give sworn testimony contented himself with saying he
would not say anything before Stanley Tsehlo come
before Court. That
was all his evidence in chief.

In this
regard the Appellants failed to raise any defence against the charge
laid against them. They had been recognised and identified.
The
events took place in broad day-light and their defence was in the
circumstances a mere sham. The accused were properly convicted.

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Regarding
sentence, it is important to point out that in carrying out their
robbery, the Appellants used a firearm not only to threaten,
but did
actually shoot at and wound P.W.2. No portion of the amount stolen
has been recovered. Any crime involving use of or threats
to use
violence will always be looked at in very serious light. The appeals
against sentence are equally dismissed.